Access to and use of the file in antitrust proceedings

Workshop organized by Concurrences in partnership with Norton Rose Fullbright.

Laurence Idot (Professor, University Panthéon-Assas Paris II)

The magazineConcurrences’s seminars follow one another, but the themes chosen are not the same. Two weeks ago, we were reflecting on a timeless theme that is constantly being renewed: fundamental rights. Today, we are confronted with a problem that is, on the one hand, recent and highly topical and, on the other hand, particularly complex.

A recent and highly topical problem

The issue first arose in relations with the United States One recalls in particular the Intel case and the appearance in leniency proceedings of the so-called paperless practice, designed precisely to circumvent requests for access by American judges. In the European Union, the difficulty came to light in the early 2000s following the so-called Lombard Club case - the Austrian banking cartel - when, in the context of reparation actions, some lawyers had the idea of relying on Regulation 1049/2001, which had just entered into force, to gain access to the Commission’s file. For example, a consumer association, which was claiming compensation for damage suffered as a result of excessively high interest rates before the Austrian courts, had requested access to the Commission file. The Court of First Instance annulled the Commission’s decision of general refusal and imposed, if the Commission wished to rely on the exceptions provided for in the text, a specific and individual examination for each document (CFI, 13 April 2005, T-2/03). The least that can be said is that this has disrupted the functioning of certain services of the Competition DG... Since this first position in favour of access to the file was taken, a major dispute has developed before the European courts, not so much in antitrust matters as in merger control and state aid. In antitrust, the Court of First Instance has maintained its vKI case law in subsequent cases, notably in the CDC judgment (Trib. UE, 15 Dec. 2011, T-437/08), but especially in the EnBW case (Tr ib. UE, 22 May 2012, T-344/08). Three cases are currently pending before it. As in the meantime the Court has restricted the possibility of access to documents, first in state aid in 2010 (TGI case), then last summer in merger control (Odile Jacob case), the Commission has lodged an appeal in the EnBW case, still pending, and the Court’s response is of course eagerly awaited (C-365/12).

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  • University Paris-Panthéon-Assas
  • Norton Rose Fulbright (Paris)
  • European Court of Justice (Luxembourg)